Tucson, AZ — AUDIT USA and its Executive Director, John R. Brakey, have filed a Motion for Reconsideration asking the Arizona Court of Appeals, Division Two, to correct several legal errors in its October 20 ruling in Santa Cruz County v. AUDIT USA. The Court, which sided with AUDIT USA in its Opinion, previously agreed the County’s lawsuit should never have been filed but declined to award attorney fees and sanctions — despite statutes requiring them.
In 2022, Santa Cruz County sued AUDIT USA and John Brakey simply for requesting a copy of an election record – the Cast Vote Record (CVR) – from the August 2022 Primary Election. Although the Superior Court judge promptly dismissed the County’s case, the County continued its unjustified litigation by appealing twice to the Arizona Court of Appeals.
“The Appeals Court got the big issue right. There was never a real dispute, and Santa Cruz County had no legal grounds to sue us simply for requesting election records,” said Brakey. “But the court overlooked mandatory attorney-fee laws designed to stop government agencies from weaponizing litigation against citizens. Our attorney, Bill Risner, deserves to be adequately paid for the time he spent defending this unjustified lawsuit.”
A Lawsuit Filed Without a Controversy
AUDIT USA’s Motion for Reconsideration explains that Santa Cruz County had agreed in writing to provide the Cast Vote Record (CVR) that AUDIT USA had requested. But instead of delivering the records or seeking clarification from the Secretary of State or Attorney General, the County filed a 39-page lawsuit against AUDIT USA and John Brakey, claiming there might be a dispute.
Arizona statutes prohibit filing lawsuits where no actual controversy exists.
Three Years of needless litigation — at taxpayer expense
Despite being informed from the beginning that AUDIT USA did not wish to litigate and that no dispute existed, the County pursued the case for over three years, burning taxpayer money to pay over $100,000 in legal fees to the private law firm it hired, Pierce Coleman, as well as wasting court resources. If the Appeals Court responds favorably to AUDIT’S Motion for Reconsideration, Santa Cruz taxpayers will be on the hook for an additional $57,000 to pay legal fees to AUDIT’s attorneys – fees they have rightfully earned.
“The law is clear,” said AUDIT attorney Risner. “When a government files or maintains a case without substantial justification, attorney fees must be awarded. The courts applied the wrong standard.”
Supreme Court precedent supports AUDIT USA’s Motion
AUDIT’S Motion cites the Arizona Supreme Court’s 2024 ruling in Arizona Republican Party v. Richer, which held that the test for “good faith” is objective, not subjective. A government’s personal belief is irrelevant; the question is whether a reasonable attorney should have known the claim was groundless.
The trial court — and the Court of Appeals — did not apply that standard.
The Appeals Court relied on incorrect information.
AUDIT’S Motion also asks the Appeals Court to correct factual misunderstandings, including its reliance on another appellate case, AUDIT USA v. Maricopa County. The Court’s Opinion erroneously states that the Maricopa case had resulted in a decision regarding CVRs, but the Court’s decision in that case involved ballot images, not the Cast Vote Record (CVRs). In actuality, Maricopa County provided AUDIT USA with its CVR — underscoring that Santa Cruz County’s lawsuit was unnecessary and unjustified.
A simple solution was available
Instead of filing suit, the County could have:
- Requested an Attorney General opinion
- Consulted the Secretary of State
- Sought guidance through the Election Procedures Manual
- Sent the records as promised
“Government agencies should not sue citizens simply because they don’t want to ask the Attorney General for guidance,” AUDIT USA chairperson Ken Bennett said: “Our democratic republic depends on transparency — and on courts enforcing the laws that protect citizens from abusive litigation.”
AUDIT USA is seeking full attorney fees and sanctions.
The Motion requests:
- Mandatory fees for AUDIT USA’s attorneys under A.R.S. §12-348
- Sanctions under A.R.S. §12-349 and §12-350
- A remand with instructions to award them
“Transparency shouldn’t require years of litigation,” Brakey added. “We hope the Appeals Court corrects the record and reinforces that government agencies cannot drag citizens into court without a legitimate dispute.”